Friday, 12 June 2015

Strasbourg ~ a note on two more important UK cases to be heard in the Grand Chamber

Here is a note about two further cases from the United Kingdom which are now before the European Court of Human Rights Grand Chamber.

Hutchinson v. the United Kingdom (no. 57592/08) - Whole Life Term for Murder - Article 3 of the Convention

Decision of the European Court of Human Rights Fourth Section - 5th February 2015

The applicant, Arthur Hutchinson, is a British national who was born in 1941 and is detained in Her Majesty’s Prison Durham (the United Kingdom). In September 1984 Mr Hutchinson was convicted of aggravated burglary, rape and three counts of murder, the trial judge sentencing him to a term of life imprisonment with a recommended minimum tariff of 18 years. In December 1994 the Secretary of State informed Mr Hutchinson
that he had decided to impose a whole life term and, in May 2008, the High Court found that there was no reason for deviating from this decision given the seriousness of Mr Hutchinson’s offences. Mr Hutchinson’s appeal was dismissed by the Court of Appeal in October 2008. Relying on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, Mr Hutchinson alleges that his whole life sentence amounts to inhuman and degrading treatment as he has no hope of release. In its Chamber judgment of 3 February 2015, the European Court of Human Rights held, by six votes to one, that there had been no violation of Article 3 of the Convention.

It observed in particular that, in a previous judgment of 9 July 2013, it had found that the domestic law concerning the Justice Secretary’s power to release a whole life prisoner was unclear. In that case, the Court was therefore not persuaded that the applicants’ life sentences were compatible with Article 3 and held that there had been a violation of Article 3. However, the UK Court of Appeal had since explicitly addressed those doubts (see R v McLoughlin 2014 and discussed in this blogpost)  and held that the Secretary of State for Justice was obliged under national law to release a person detained on a whole life order where “exceptional grounds” for release could be shown to exist, and that this power of release was reviewable by the national courts.

Having regard to this clarification, the Chamber concluded that whole life orders were open to review under national law and therefore compatible with Article 3 of the Convention. On 1 June 2015 the case was referred to the Grand Chamber at the request of Mr Hutchinson.

Ibrahim and Others v. the United Kingdom (nos. 50541/08, 50571/08, 50573/08 and 40351/09) - Access for suspects to legal advice - "Safety Interviews" - Article 6 of the Convention

Decision of the European Court of Human Rights Fourth Section - 16th December 2014

The applicants in the first three applications, Muktar Said Ibrahim, Ramzi Mohammed and Yassin Omar, are Somali nationals who were born in 1978, 1981, and 1981 respectively. The applicant in the fourth application, Ismail Abdurahman, is a British national who was born in Somalia in 1982.

On 7 July 2005 suicide bombers detonated their bombs on the London transport system, killing 52 people and injuring countless more. Two weeks later, on 21 July 2005 four bombs were detonated on the London transport system but failed to explode. The perpetrators fled the scene but were later arrested. Following the arrest of the first three applicants – Mr Ibrahim, Mr Mohammed and Mr Omar – they were temporarily refused legal assistance in order for police “safety interviews” (interviews conducted urgently for the purpose of protecting life and preventing serious damage to property) to be conducted.

Under the Terrorism Act 2000, such interviews can take place in the absence of a solicitor and before the detainee has had the opportunity to seek legal advice. During the interviews the applicants denied any involvement in or knowledge of the events of 21 July. At trial, they acknowledged their involvement in the events but claimed that the bombs had been a hoax and were never intended to explode. The statements made at their safety interviews were admitted at trial.

They were convicted in July 2007 of conspiracy to murder and sentenced to a minimum term of 40 years’ imprisonment. The Court of Appeal subsequently refused leave to appeal against their conviction.

Mr Abdurahman, the fourth applicant, was not suspected of having detonated a bomb and was initially interviewed by the police as a witness. He started to incriminate himself by explaining his encounter with one of the suspected bombers shortly after the attacks and the assistance he had provided to that suspect. The police did not, at that stage, arrest him and advise him of his right to silence and to legal assistance. Instead, they continued to question him as a witness and took a written statement from him. He was subsequently arrested and offered legal advice. In his ensuing interviews, he adopted and referred to his written statement. This statement was admitted as evidence at his trial.

He was convicted in February 2008 of assisting one of the bombers and of failing to disclose information about the bombings. He was sentenced to ten years’ imprisonment. His appeal against his conviction was dismissed in November 2008 and his sentence reduced to eight years’ imprisonment on account of the early assistance that he had given to the police.

Relying on Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance) of the European Convention on Human Rights, the applicants complain about their lack of access to lawyers during their initial police questioning, alleging that their subsequent convictions were unfair because of the admission at trial of the statements they had made during those police interviews.

In its Chamber judgment of 16 December 2014, the European Court of Human Rights, held, by six votes to one, that there had been no violation of Article 6 § 1 and 3 (c) (right to a fair trial and right to legal assistance) of the Convention. The Court was satisfied that, at the time of the four applicants’ initial police interviews, there had been an exceptionally serious and imminent threat to public safety, namely the risk of further attacks, and that this threat provided compelling reasons justifying the temporary delay in allowing the applicants’ access to lawyers.

The Chamber also found that no undue prejudice had been caused to the applicants’ right to a fair trial by the admission at their trials of the statements they had made during police interviews and before they had been given access to legal assistance. It took into account the counterbalancing safeguards contained in the national legislative framework, as applied in each of the applicants’ cases; the circumstances in which the statements had been obtained and their reliability; the procedural safeguards at trial, and in particular the possibility to challenge the statements; and the strength of the other prosecution evidence. In addition, as concerned the fourth applicant, who had made self-incriminating statements during his police interview, the Chamber emphasised the fact that he had not retracted his statement even once he had consulted a lawyer but had continued to rely on his statement in his defence up until his request that it be excluded at trial.

On 1 June 2015 the case was referred to the Grand Chamber at the request of two of the applicants (Mr Omar (application no. 50573/08) and Mr Abdurahman (application no. 40351/09)).

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